A federal judge in Los Angeles has suggested serious penalties for Brett Gibbs, an attorney at porn copyright trolling firm Prenda Law. Facing allegations of fraud and identity theft, Gibbs will be required to explain himself at a March 11 hearing. And if Judge Otis Wright isn't satisfied with his answers, he may face fines and even jail time.

The identity theft allegations emerged late last year, when a Minnesota man named Alan Cooper told a Minnesota court he suspected Prenda Law named him as the CEO of two litigious offshore holding companies without his permission. Worried about exposing himself to potential liability for the firms' misconduct, Cooper asked the court to investigate the situation. Cooper's letter was spotted by Morgan Pietz, an attorney who represents "John Doe" defendants in California. He notified Judge Wright of the allegations.

Rather than addressing Cooper's concerns, Prenda stonewalled. When Judge Wright became interested in the identity theft issue, the firm tried to get him taken off the case. That request was rebuffed by the courts, and now Prenda is running out of options.

Under the heading "Fraud on the Court," Judge Wright notes in a Thursday order that Prenda "faces a few problems" if the identity theft allegations are true. "First, with an invalid assignment, Plaintiff has no standing in these cases. Second, by bringing these cases, Plaintiff’s conduct can be considered vexatious, as these cases were filed for a facially improper purpose. And third, the Court will not idle while Plaintiff defrauds this institution."

The March 11 hearing in Wright's courtroom will effectively be a miniature trial on Prenda's conduct. Judge Wright has invited Pietz to "present evidence concerning the conduct outlined in this order." Prenda's Brett Gibbs will then be given an "opportunity to justify his conduct." Judge Wright will also "welcome the appearance of Alan Cooper—to either confirm or refute the fraud allegations."

Once all the evidence is in, Judge Wright will decide what kind of punishment, if any, is appropriate. The options include "a monetary fine, incarceration, or other sanctions sufficient to deter future misconduct. Failure by Mr. Gibbs to appear will result in the automatic imposition of sanctions along with the immediate issuance of a bench warrant for contempt," Judge Wright writes.

Is there a "pubescent male in the house?"

In addition to the Alan Cooper issue, Judge Wright is concerned about the slipshod way Prenda identifies defendants. When a household has multiple members, Prenda evidently decides who to sue based on statistical guesswork. "For example," Prenda wrote in one court filing, "if the subscriber is 75 years old, or the subscriber is female, it is statistically quite unlikely that the subscriber was the infringer."

Judge Wright is unimpressed by this methodology: "The Court interprets this to mean: if the subscriber is 75 years old or female, then Plaintiff looks to see if there is a pubescent male in the house; and if so, he is named as the defendant. Plaintiff’s 'factual analysis' cannot be characterized as anything more than a hunch."

According to Judge Wright, Prenda has failed to provide any hard evidence that the individual defendants it has named were responsible for the illicit downloads. The firm did nothing to rule out "other members of the household; family guests; or, the next door neighbor who may be leeching from the [defendant's] Internet access."

In Judge Wright's view, Prenda should have done more to establish the defendant's identity. For example, Prenda could have sent someone to visit the defendant's house to observe whether it has an open Wi-Fi connection. It could have checked whether the same IP address downloaded infringing videos on other days to rule out a transient houseguest. And "an old-fashioned stakeout may be in order: the presence of persons within the subscriber’s home may be correlated with tracking data."

But Prenda didn't do any of that. Judge Wright concludes that filing a lawsuit based on such flimsy "evidence" is a violation of the court's rules. Plaintiffs are expected to have "evidentiary support" for their charges; a "rumor or hunch" doesn't cut it. Yet in Wright's view, Prenda's practice of assuming that teenage boys are always responsible for infringing downloads amounts to just that.

Gibbs has an opportunity to submit a written brief defending himself on February 19. Then, in early March, he'll have to hop on a plane to appear in Judge Wright's Los Angeles courtroom to explain his actions.

The 6-strikes program doesn`t require evidence because you don`t get to defend yourself in a real court.

Sadly true. ISPs can deny anyone service for any reason they choose as long as it is not a systematic denial of civil rights. The six strikes scheme is rationally related enough to the prevention of piracy to withstand civil rights challenges, at least as long as internet access is controlled by private companies. If access were ever to be nationalized into a public utility, well, then things may be different. Maybe better, maybe not, hard to tell.

In any case I am looking forward to the outcome of the hearing. While piracy is a crime (agree with it or not) what these copyright trolls are doing is also a crime - in any other context extortion would be a criminal offense. Why these folks are allowed to abuse the system is beyond me.

I sure hope that this worthless copyright troll finally get the book thrown at him. I wonder if the penalties from this case could ultimately lead to disbarment.

As far as the 6-strikes process goes, it may not actually be part of the legal system as a process but I'd bet that it won't take long for a situation to happen where someone will step up and represent the cut off individual in an actual lawsuit. With most people having access to two viable options for internet access, at best, being cut off is a major problem. Sure the classic pirate, young single technically adept male, may not be able to get representation but a single mom or grandma who only uses email etc will just like the RIAA suites.

I sure hope that this worthless copyright troll finally get the book thrown at him. I wonder if the penalties from this case could ultimately lead to disbarment.

As far as the 6-strikes process goes, it may not actually be part of the legal system as a process but I'd bet that it won't take long for a situation to happen where someone will step up and represent the cut off individual in an actual lawsuit. With most people having access to two viable options for internet access, at best, being cut off is a major problem. Sure the classic pirate, young single technically adept male, may not be able to get representation but a single mom or grandma who only uses email etc will just like the RIAA suites.

Two? I got ONEAT+T

My day job - researcher for TorrentFreak. Guess who does a LOT of torrent activity on his line....

I sure hope that this worthless copyright troll finally get the book thrown at him. I wonder if the penalties from this case could ultimately lead to disbarment.

Disbarment is ultimately up to the state bar where the attorney is licensed. I would suspect perpetrating identity fraud to file nonsensical lawsuits would be enough. As a bonus, much like the six strikes law, lawyers who face disbarment also don't always get to try the case in a formal court. Ironic, or something...

Prenda is, at this phase, in a situation known in legal terminology as "totally screwed." My advice to the attorney would be to "hit the border running and not look back." Of course, I am not an attorney, and cannot dispense legal advice.

"The Court interprets this to mean: if the subscriber is 75 years old or female, then Plaintiff looks to see if there is a pubescent male in the house; and if so, he is named as the defendant. Plaintiff’s 'factual analysis' cannot be characterized as anything more than a hunch."

So...if the gun is registered to a 75 year old female, then the police look to see if there is African-American male nearby, and if so, he is brought in for questioning.

"In any case I am looking forward to the outcome of the hearing. While piracy is a crime (agree with it or not) what these copyright trolls are doing isalso a crime - in any other context extortion would be a criminal offense. Why these folks are allowed to abuse the system is beyond me."Piracy is not necessarily a 'crime', and I have down voted the comment for this unsubstantiated claim.Piracy is mostly only a civil issue.

Ah Prenda, you know that point where you go "I've taken this far enough, and if I keep going, I might get into serious trouble"? You passed it a while ago. Any sane attorney would have just filed to dismiss the case a long time ago, when it became painfully obvious that not only wouldn't the defendant just roll over, but the judge wouldn't just rubber stamp their demands. So Mr. Gibbs now has a month to find another Alan Cooper willing to commit perjury to say that he is the CEO. Good luck with that!

I'm guessing better than even odds that Mr. Gibbs makes it even harder on himself by not showing up to the hearing and ends up with a bench warrant for his arrest.

"In any case I am looking forward to the outcome of the hearing. While piracy is a crime (agree with it or not) what these copyright trolls are doing is also a crime - in any other context extortion would be a criminal offense. Why these folks are allowed to abuse the system is beyond me."

Piracy is not necessarily a 'crime', and I have down voted the comment for this unsubstantiated claim.Piracy is mostly only a civil issue.

^ Yup. Only a select few situations would make the pirate criminally liable.

"Section 506 of the Copyright Act and Section 2319 of Title 18 of the United States Code authorize criminal liability for willfully infringing copyright under the following circumstances:

If the willful infringement was for purposes of commercial advantage or private financial gain;

If the willful infringement involved the reproduction or distribution during any 180-day period of one or more copies of one or more copyrighted works that have a total retail value that exceeds $1,000; or

If the willful infringement involved the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if the infringer knew or should have known that the work was intended for commercial distribution.

Criminal penalties can include fines as well as imprisonment for up to five years. Imprisonment can be for up to ten years for a second or subsequent offense."

It's a shame that the US copyright system invites these bizarre abuses. Prenda seems to be one of the more glaring examples, but every one of these cases has some farcical element to it. You never see a story where you think a guilty defendant got sued by a good law firm, lost, and faced an appropriate punishment.

The current setup demeans our justice system, and it's tragic that no one in a position to do something about it seems to care.

It's a shame that the US copyright system invites these bizarre abuses. Prenda seems to be one of the more glaring examples, but every one of these cases has some farcical element to it. You never see a story where you think a guilty defendant got sued by a good law firm, lost, and faced an appropriate punishment.

Did it occur to you that the reason for this is that the media is only going to report on controvertial cases, or interesting ones?

In other words, when things happen as they're supposed to, you never hear about it.

Ergo, the very stupid (which is most of society) assumes that everything is terrible because the news only reports on things like this.

And the news gets more butts in the seats this way, and thus is incentivized to manufacture controversy when there is none (see also: Kim Dotcom).

The RIAA claims to represent the producers of 85% of the music legally sold in the US. Are you telling me we have a successful, properly run, working system and these guys forgot to mention it?

Let's say the press is relentless in reporting only the most bizarre cases (which I would dispute), while ignoring the lion's share of cases in which everything works to perfection. Are you saying the court system, the Justice Department, the bar associations, the industry advocacy groups, the legislators - everyone but you - have let this misinformation spread for years undisputed? What a stunning oversight on the part of every single party to justice except for the media.

I sure hope that this worthless copyright troll finally get the book thrown at him. I wonder if the penalties from this case could ultimately lead to disbarment.

Disbarment is ultimately up to the state bar where the attorney is licensed. I would suspect perpetrating identity fraud to file nonsensical lawsuits would be enough. As a bonus, much like the six strikes law, lawyers who face disbarment also don't always get to try the case in a formal court. Ironic, or something...

Cheers!

Sadly, after following these cases for the last couple of years between Righthaven and porn copyright trolls, it has become apparent to that state bar associations and judges themselves are loathe to loathe to hold attorneys responsible for their behavior.

It makes sad sense because bar associations are associations of lawyers, so they want the system to be set up to give them as much latitude as possible. Lawmakers and judges are mostly lawyers so they also have a professional interest in giving practitioners of the legal profession a privileged legal status.

I don't have links offhand but occasionally someone on a forum following copyright trolling will post an example of a lawyer getting disbarred after he has been convicted of a crime and already been sitting in jail for a couple of years. That's how long it takes for a state bar to get off their ass and discipline a lawyer who is already a convicted criminal serving time.

Gibbs has been lying to California courts for over two years. He has filed lawsuits that are outright frauds, for example Hard Drive Productions, Inc. vs Does 1-118. This was a case that resulted in one Defendant filing a lawsuit of his own, because, among other reasons, Prenda had lied and said the work was registered with the Copyright Office when it fact they had never even applied for registration, which is a prerequisite to even filing a copyright infringement case, and is also a prerequisite for claiming the $150,000 statutory damages that Gibbs requested in the suit. He has also lied numerous times regarding the natures of the technologies involved, the "investigations" performed on the people they choose to pursue with individual lawsuits, and now it appears outright ID theft and fraud. This is the sort of thing that I can see an attorney getting away with if there was a genuine clerical error, and maybe he would merely be sanctioned and not disbarred. But in Gibbs and Prenda's case this is part of a pattern of behavior of defrauding the courts, and not just defrauding the courts but building a business model on filing documents filled with lies in California courts.

Whatever you think of copyright law or the wisdom of pursuing lawsuits against individuals is a separate issue from wether or not attorneys should be permitted to lie to the courts, perjure themselves without consequence, etc. Attorneys should have to follow the law like everybody else, and it is depressing and disappointing that neither the courts nor the legal profession agree.

It's great that this guy's shenanigans are catching up with him, but he has been doing this since at least late 2010, and was filing BS, non-registered work lawsuits from the get-go that should never have been permitted to proceed beyond the filing stage, yet the courts indulged him time and again. The courts and the CA Bar have had plenty of time to reign this guy in and they chose not to because they know they all benefit from being able to run wild with no accountability.

"In any case I am looking forward to the outcome of the hearing. While piracy is a crime (agree with it or not) what these copyright trolls are doing is also a crime - in any other context extortion would be a criminal offense. Why these folks are allowed to abuse the system is beyond me."

Piracy is not necessarily a 'crime', and I have down voted the comment for this unsubstantiated claim.Piracy is mostly only a civil issue.

^ Yup. Only a select few situations would make the pirate criminally liable.

"Section 506 of the Copyright Act and Section 2319 of Title 18 of the United States Code authorize criminal liability for willfully infringing copyright under the following circumstances:

If the willful infringement was for purposes of commercial advantage or private financial gain;

The wording "private financial gain" seems to allow the prosecutor to charge anyone because they could claim downloading was attempt at "private financial gain" e.g. the downloaded saved money by not buying the work.

Quote:

If the willful infringement involved the reproduction or distribution during any 180-day period of one or more copies of one or more copyrighted works that have a total retail value that exceeds $1,000; or

If the willful infringement involved the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if the infringer knew or should have known that the work was intended for commercial distribution.

Criminal penalties can include fines as well as imprisonment for up to five years. Imprisonment can be for up to ten years for a second or subsequent offense."

It's a shame that the US copyright system invites these bizarre abuses. Prenda seems to be one of the more glaring examples, but every one of these cases has some farcical element to it. You never see a story where you think a guilty defendant got sued by a good law firm, lost, and faced an appropriate punishment.

Did it occur to you that the reason for this is that the media is only going to report on controvertial cases, or interesting ones?

In other words, when things happen as they're supposed to, you never hear about it.

Ergo, the very stupid (which is most of society) assumes that everything is terrible because the news only reports on things like this.

And the news gets more butts in the seats this way, and thus is incentivized to manufacture controversy when there is none (see also: Kim Dotcom).

The standard joke is "If it bleeds it leads". Most "news" is, as noted above, something either controversial, interesting, or gory. The most routine, humdrum does not get reported.

The wording "private financial gain" seems to allow the prosecutor to charge anyone because they could claim downloading was attempt at "private financial gain" e.g. the downloaded saved money by not buying the work.

Nonsense. It means simply, for private financial gain. IOW, If you do it for profit, there's no minimum time frame or minimum value set for it to be a criminal offense. If you aren't profiting from piracy, you must meet the requirements of §506a(1)(B) to be prosecuted for criminal copyright infringement

Quote:

by the reproduction or distribution, including by electronic means, during any 180–day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

IOW, downloading $1000 worth of music and/or movies over a 6-month period.

It sounds like Mr Gibbs would be well advised to face the court with a full admission and take it like a man (and I don't mean in a bending over and picking up the soap way, although he should probably be prepared for that as well).

The wording "private financial gain" seems to allow the prosecutor to charge anyone because they could claim downloading was attempt at "private financial gain" e.g. the downloaded saved money by not buying the work.

Nonsense. It means simply, for private financial gain. IOW, If you do it for profit, there's no minimum time frame or minimum value set for it to be a criminal offense. If you aren't profiting from piracy, you must meet the requirements of §506a(1)(B) to be prosecuted for criminal copyright infringement

Quote:

by the reproduction or distribution, including by electronic means, during any 180–day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

IOW, downloading $1000 worth of music and/or movies over a 6-month period.

I'm not a lawyer, but this brings up an interesting question. If the retail price hasn't been set on a pirated movie still in theaters, what's to stop the MPAA from stating the movie in its unreleased form costs whatever lease arrangements they have with theaters?

You could argue either way with this, that the movie costs the average of ticket sales across the nation, or the ticket prices of your geographic area. On the other hand, there could be the attempt to say that no price for consumers has been finalized, and you are looking at leasing deal territory amounts that movie theaters pay.

I'm not a lawyer, but this brings up an interesting question. If the retail price hasn't been set on a pirated movie still in theaters, what's to stop the MPAA from stating the movie in its unreleased form costs whatever lease arrangements they have with theaters?

You could argue either way with this, that the movie costs the average of ticket sales across the nation, or the ticket prices of your geographic area. On the other hand, there could be the attempt to say that no price for consumers has been finalized, and you are looking at leasing deal territory amounts that movie theaters pay.

Actually, that's covered by a different section of the law, and it can be criminal without any stipulations, There's a similar statute for bootleg performances. The RIAA and MPAA paid good money for those laws.

The wording "private financial gain" seems to allow the prosecutor to charge anyone because they could claim downloading was attempt at "private financial gain" e.g. the downloaded saved money by not buying the work.

Nonsense. It means simply, for private financial gain. IOW, If you do it for profit, there's no minimum time frame or minimum value set for it to be a criminal offense. If you aren't profiting from piracy, you must meet the requirements of §506a(1)(B) to be prosecuted for criminal copyright infringement

Quote:

by the reproduction or distribution, including by electronic means, during any 180–day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

IOW, downloading $1000 worth of music and/or movies over a 6-month period.

I'm not a lawyer, but this brings up an interesting question. If the retail price hasn't been set on a pirated movie still in theaters, what's to stop the MPAA from stating the movie in its unreleased form costs whatever lease arrangements they have with theaters?

You could argue either way with this, that the movie costs the average of ticket sales across the nation, or the ticket prices of your geographic area. On the other hand, there could be the attempt to say that no price for consumers has been finalized, and you are looking at leasing deal territory amounts that movie theaters pay.

My real concern is someone like Carmen Ortiz who uses the poor wording to indict someone who is not the real target of the law.

I'm not a lawyer, but this brings up an interesting question. If the retail price hasn't been set on a pirated movie still in theaters, what's to stop the MPAA from stating the movie in its unreleased form costs whatever lease arrangements they have with theaters?

You could argue either way with this, that the movie costs the average of ticket sales across the nation, or the ticket prices of your geographic area. On the other hand, there could be the attempt to say that no price for consumers has been finalized, and you are looking at leasing deal territory amounts that movie theaters pay.

Those nits are hypothetical ones. First of all, these being criminal charges it would be the gov't prosecuting the accused infringer and not the MPAA and the gov'ts not really likely to prosecute a case if the offender hasn't significantly gone over the minimal line. This particular copyright law was written to close the LaMacchia Loophole, when (before the internet) it used to be highly unlikely that anyone would infringe copyrights on a large scale who wasn't doing it for money.

These schmucks from Prenda made themselves all to easy to hate by representing an industry to which practically nobody is sympathetic. As such, the judge is probably finding it difficult to muster up any kind of lawyer camaraderie/sympathy for them, and he's effectively free to treat them like the scum that they actually are. In fact, their actions are so far off the beam, that I'd bet that not even those scummy RIAA lawyers would touch this situation with a fifty foot pole -- which is, ironically, to their detriment... because when all is said and done, Prenda may end up inadvertently bringing about some legal precedent which will be quite useful to the defendants in any future non-porn copyright lawsuits.

What I'd like to know is: if Alan Cooper (the one claiming identity theft) is "invited" to show up at the hearing in March, would he have to fly out there on his own dime? Surely, if he's not being formally summoned, it should be up the court to arrange his transportation.

Second, by bringing these cases, Plaintiff’s conduct can be considered vexatious

You don't want to make the court angry. You wouldn't like the court when it's angry.

I'd like to believe you, but the way this keep coming across it's as if the judge is giving these guys like a million tries to get it right. I've had my a-- ripped harder trying to fight a speeding ticket. These are lawyers pulling illegal acts. Regardless of what the judge does, the prosecutor should be filing formal charges and sending these clowns to jail where they can receive their disbarment in the mail.

What I'd like to know is: if Alan Cooper (the one claiming identity theft) is "invited" to show up at the hearing in March, would he have to fly out there on his own dime? Surely, if he's not being formally summoned, it should be up the court to arrange his transportation.

The Alan Cooper claiming identity theft isn't invited to show up. His claim is he has nothing to do with these cases, the court invites the appearance of Alan Cooper the principal of the holding companies who allegedly brought suit over the alleged infringement of the copyrights assigned to his holding companies. Given the ability of multiple LLC's to bring these suits hangs in the balance, it would be best for them to produce him or else. Judicial notice to every other court where Pretenda has cases pending about these actions would get the brakes slammed on all of their cases until these questions are answered. Steele already has moved on to the newer version of the scam where he owns the porn house, legal firm, ip harvester, settlement machine... but Pretenda and their newer name being locked out will definitely make the landscape harder for them, if not impossible, in the future. Already in cases across the country being "handled" by local counsel references to Prenda and contact information listing Mr. Gibbs and others has been altered in updating filings - a white wash campagin to try and lessen the damage.

Second, by bringing these cases, Plaintiff’s conduct can be considered vexatious

You don't want to make the court angry. You wouldn't like the court when it's angry.

I'd like to believe you, but the way this keep coming across it's as if the judge is giving these guys like a million tries to get it right. I've had my a-- ripped harder trying to fight a speeding ticket. These are lawyers pulling illegal acts. Regardless of what the judge does, the prosecutor should be filing formal charges and sending these clowns to jail where they can receive their disbarment in the mail.

The problem is the court can only deal with the actions before it. The bad acts are in different courts all over the country. The court is dealing only with allegations of wrongdoing and has to let Pretenda have enough rope to hang themselves so that the allegations can be proven true or false. Given how they like to run when pushed to provide answers, the court made it crystal clear they will appear and provide answers or else. Once the bad acts come out in this case, news of them will be spread across the courts in the country. Hopefully some nice AG's or someone from DoJ might actually do something about the abuse of copyright but considering the current atmosphere in the US of copyright holders can do no wrong I'm not holding my breath.